WHAT IS A PARTITION ACTION IN CALIFORNIA?

A partition action is a court ordered procedure to separate joint owners’ respective interests in real estate. California Code of Civil Procedure 872.240. This is only a court ordered remedy for co-owners who fail to agree on what to do with a possession. A partition action will make sure a sale or division of a property is equitably divided amongst its co-owners. A partition is attainable no matter the size of your interest in the property, as well as whether your co-owner is hostile, uncommunicative, or just doesn’t want to sell the property. In actuality, California courts have clearly stated that the “right to partition is absolute.” For example, Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.

HOW DOES A PARTITION ACTION WORK?

A partition action may be a last option for many co-owners who have tried rationally with their uncooperative co-owner(s). Once all choices to reason with this person have been worn out, a partition action is the only option to make sure an equitable division of jointly owned real estate to be issued. Consulting with a partition attorney to ensure that all documents are properly filed with the court is the best choice. A partition attorney in California can assist you to organize the important documents needed to proceed with the partition, including, but not limited to: 

• The Grant Deed
• Trust Deed
• Will
• In addition to any other documents the attorney may need to evaluate your case.

A partition action formally begins when one co-owner files a complaint for a petition for partition with the court. After the petition has been filed, a lis pendens, or a notice of pendency of action, is recorded with the county recorder’s office. The lis pendens works for as constructive notice for anyone interested in the property that there is pending legal action influencing title to, or possession of, the property. The lis pendens will endure on the property until the partition is complete or the complaint is dropped. Presuming the partition suit continues to proceed, it will be handed out to the court at which time the judge will make the adamant decision. A partition request that is upheld by the judge will result in the court appointing a partition referee. A partition referee is a neutral, third party whose duty is to fairly divide the property or distribute the proceeds of the sale of the property equitably.

Common Co-Ownership Disputes

Partition actions are very ordinary among co-owners in California. There are various examples of partition actions, but all contain co-owners who disagree on what to do with jointly owned property. Among the most frequent parties in partition actions are the following:

• Co-investors in real estate
• Friends
• Cousins, aunts and uncles
• Former boyfriends and girlfriends
• Parents and children
• Co-investors in real estate
• Siblings, especially after jointly inheriting a family home
• Co-investors in real estate
• Cousins, aunts and uncles
• Post-divorce joint owners
• Parents and children
• Former boyfriends and girlfriends

Nevertheless, the parties ended up in the co-ownership relationship, there is only one option to end those disputes: a partition action.

In the majority of cases, the length of time for a partition action is only a few months, and the cost of the partition will be several thousand dollars. However, the outcome will be that plaintiffs will have a check in their hand without the worries of co-ownership.

HOW LONG DOES A PARTITION ACTION TAKE?

The amount of time it takes to settle a partition action varies greatly depending on the complexity of each case scenario. The best case scenario, it is possible to reach a settlement agreement in as short as a few months of the process. Nevertheless, in a worst case scenario where the partition is hotly contested by other parties, it may take a year or even two (rarely longer) years for the partition action to be finished. An \experienced partition attorney can help you achieve a decision in your partition case in the most time-efficient manner.

WHO CAN FILE A PARTITION ACTION?

There are four distinct types of co-ownership in California: joint tenancy (with rights of survivorship), tenancy in common, partnership, and community property. Any real estate owned by joint tenants, tenants in common, or under a partnership is subject to partition law. Community property, however, is not. Property that has been purchased by spouses during the course of their marriage is community property, and therefore does not fall under the umbrella of partition law, unless it was already distributed to the former marital partners in the divorce. A family law attorney with experience in division of community property can assist in such scenarios.

A partition action is often filed by a property co-owner who wants to sell the property but his or her co-owners are unwilling to do so. Some common examples where filing a partition may be the best course of action are:

• A brother and sister inherit a California property from their parents. Each sibling is a joint tenant with 50% ownership in the home. The sister has been living in the home, but the brother lives across the country and gets no use out of this inherited property. The brother wants to sell the home but the sister refuses to cooperate. The brother files a partition action in California to force the sale of the house. He will then be able to collect his share (50%) of the proceeds from the sale of the home.
• A boyfriend and girlfriend buy a home together as tenants in common. After purchasing the home, the couple decides to break up. The boyfriend continues living in the home but the girlfriend moves out. However, the girlfriend paid the entire down payment and still makes all the mortgage payments. The girlfriend may file a petition for partition to force the sale of the home and obtain the value of her interest in the home. Additionally, she may be subject to equitable apportionment of payments she made toward the house.
• Three friends purchase a plot of land with the intent to build on it. One friend has a 50% interest in the land and the other two friends have 25% interests. Their plans to build on the land fall apart, and they can’t decide on what to do with the land. Any of the friends may petition for a partition, including a partition in kind. A partition in kind would allow each of the friends to become an owner of his/her proportion of the land. A partition in kind is rare due to the difficult nature of dividing the land equitably.

WHO PAYS FOR A PARTITION ACTION?

In the United States, each party usually pays for their own attorney’s fees (this is known as the “American Rule”). Nevertheless, California partition law enables for an exception to this rule, stating that “the court shall allocate the costs of partition among the parties in proportion to their interests or make such other apportionment as may be fair for all parties.” California Code of Civil Procedure 874.040. As expected, the court may award “reasonable attorney’s fees sustained or paid by a party for the common benefit.” California Code of Civil Procedure 874.010(a).

An exceptional partition attorney knows how to keep attorney’s fees, and the overall cost of a partition action, reasonable for all parties involved.

What Happens in a Partition Action?

Just about all partition actions are partition by sale. After filing the partition complaint and serving the defendants, the court will normally order that the property be advertised for sale by a court-appointed partition referee. That referee will hire a Realtor to market the property on the MLS (Multiple Listing Service) so that the offers are at the full market value.

Nevertheless, in many cases scenarios, the co-owner in proprietorship will make a settlement offer to the co-owner filing the partition to purchase their interest for an amount that is equal to what the plaintiff would receive if the partition action resulted in a sale of the property. These settlements short-circuit the delays, headaches and attorney’s fees experienced in prolonged litigation. 

Rarely speaking, there are other types of partitions that can be used. In a partition by appraisal, the parties agree on the buyer and method of appraisal of the property to allow one or more parties to be bought out. In a partition in kind, normally used for vacant land, the property can be physically split up. Single family homes are normally unqualified for this type of partition.

The Right to Partition in California

Time and time again, when there is disagreement where one or more co-owner of a property may want to sell the property, but the other co-owner does not agree to sell, a partition action can be filed to force the sale of the property fairly and equitably among the joint owners of the property.

Luckily, the right to a partition action is absolute in California, meaning that the right to partition a property is successful by any co-owner, no matter how small or large their interest in the property may be. Once filing is commenced with the courts, a partition action cannot be “halted” by a party who does not wish to sell the property unless the parties can resolve the dispute by settling. As the courts have explained, “the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the contents will be promoted by refusing the application or temporarily postponing action, . . .’” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.

Are There Defenses to a Partition Action?

Majority of the time, parties ask if a partition action can be stopped, and whether there are affirmative defenses to a partition action. Unfortunately, in the rarest of case scenarios, there is no defense to a partition action. When there is a defense, it will usually consist of a written waiver of the right to partition in a tenants in common agreement. Nevertheless, this is exceedingly rare as most co-owners do not have any written agreement correlated with their co-ownership arrangement. 

What is the cost for a Partition Action and who will pay the attorney fees? 

For all you know the most common question we are asked is the cost of a partition action in California. Usually, the cost will range from $6,000 to $13,000, depending upon the complexity.

Oftentimes, there is an uncooperative tenant or co-owner at the property who is in no rush to depart from. An experienced partition attorney in California  will make sure that the occupants cooperate or pay the price both financially and possibly through paying your attorneys fees for the partition. Rarely,  partition actions give rise to related disputes, such as a quiet title action, which can increase the cost of a partition action.

Can I Recover Offsets for the Mortgages, Taxes, Insurance, Repairs, Improvements, and Rental Value?

After the property is sold, every partition involves an accounting wherein owners can recover partition offsets. If one co-owner made improvements, paid the taxes or paid the mortgage, this will be the time to recoup those payments. Even further, if one co-owner has been in possession or has retained the rent, an argument can be raised to recover the rental value of the property.

We Are Here For You 24/7​

The faster you speak to a Civil Litigation Attorney the better. Waiting too long to file Civil cases can complicate your case. Make it easy on yourself. Call us to talk with an experienced lawyer right away. Your call is confidential, and you’re FREE CONSULTATION with one of our civil litigation attorneys at (310) 894-6440.